No Regulatory Taking For Incorrect Government Advisory Pronouncements That Have Financial Impact.

In 2008, numerous cases of salmonellosis (an infection caused by the salmonella bacteria) were reported.  Federal agencies investigated and later the U.S. Food and Drug Administration (FDA) issued a press release that the outbreak "appeared to be linked" to the consumption of "raw red plum, red Roma, or round red tomatoes."  Additional press releases were issued with a final release announcing that fresh tomatoes in the domestic market "are not associated with the current outbreak."  The plaintiffs, tomato producers whose tomatoes were linked to the outbreak, claimed that their perishable tomatoes were destroyed due to a decrease in market demand for their tomatoes and sued for a regulatory taking.  The court denied the claim on the basis that the government action had no legal effect on any property interest of the plaintiffs.  The court (opinion by Obama-appointed judge) held that government advisory opinions are insufficient to constitute a Fifth Amendment taking even if there is a significant financial impact on the marketplace.  Dimare Fresh, Inc. v. United States, No. 2015-5006, 2015 U.S. App. LEXIS 18741 (Fed. Cir. Oct. 28, 2015).